Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Mad) 1659

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
Jugraj
Versus
P. Sankaran & Others
Second Appeal No.699 of 2003 & C.M.P.No.6660 of 2003
Decided On : 09-04-2010

Advocates Appeared:
For the Appearing Parties:S. Raghavan, Advocate. R. Subramanian, Sr. Counsel for S.V.R. Ram Prasad, Advocate.

Ratios:
a. Receiving back the advance amount paid by the buyer would not prevent the buyer from filing or continuing the suit for specific performance.
b. Even though time is not an essence of the contract regarding the sale of immovable properties, the parties under such agreement have to perform their obligations within a reasonable time, if certain conditions are existing.
c. Delay in filing the suit for specific performance would operate either as acquiescence, waiver, abandonment or atleast make it inequitable to grant the relief of specific performance to the plaintiff.

Headnote:(A)Specific Relief Act, 1963(47 of 1963)-Sec.16(c)-Indian Evidence Act, 1872(1 of 1872)-Sec.114- Specific performance-Ready and willing-Price-Escalation-Notice-Certificate of posting-Presumption-Advance-Return-Receipt-Waiver-Plaintiff had entered into an agreement to purchase a property from the defendants and when they did not pay money in time, after cancelling the agreement by sending notice to the plaintiff by certificate of posting, defendants sold it to a third party-Plaintiff sought for specific performance-Defendants contended that the plaintiff failed to prove his readiness to perform his part of the obligation and so not entitled for the relief-Trial Court held that the plaintiff failed to prove his readiness to prove his part of the contract and dismissed the prayer for specific performance and the appeal by the plaintiff was also dismissed-Plaintiff filed further appeal and contended that time was not the essence of the contract-Defendants contended that after the judgment by the trial Court, they repaid the advance amount which was received by the plaintiff and on receipt, he could not maintain the appeal-Held, mere receipt of advance money by the purchaser would not prevent him from insisting specific performance-Though time was not an essence in the case of purchase of immovable property, it had to be performed within a reasonable time-Plaintiff failed to prove his readiness and willingness to perform his part of the agreement within a reasonable time-Appeal was dismissed.
        (B)Specific Relief Act, 1963(47 of 1963)-Sec.16(c)-Specific performance-Advance-Return-Receipt-Waiver-Receiving back the advance amount paid by the buyer would not prevent the buyer from filing or continuing the suit for specific performance.
        Learned counsel appearing for the appellant submitted that though the appellant had received the above amount as decreed by the trial court, that will not prevent the appellant from appealing against the rejection of the relief of specific performance. …..
        28. Therefore, in view of the above referred judgments, it is clear that the appeal filed by the plaintiff is maintainable, since he is aggrieved by the rejection of his prayer for specific performance. Para 27, 28

        (C)Specific Relief Act, 1963(47 of 1963)-Sec.16(c)-Specific performance-Ready and willing-Time-Essence-Reasonable time-Even though time is not an essence of the contract regarding the sale of immovable properties, the parties under such agreement have to perform their obligations within a reasonable time, if certain conditions are existing.
        Even if time is not the essence of the contract, the contract is to be performed in a reasonable time. It is also settled principle that even though time is not the essence of the contract, the parties under such agreement have to perform their obligations within a reasonable time, if certain conditions are existing. Para 32
        (D)Specific Relief Act, 1963(47 of 1963)-Sec.16(c)-Specific performance-Ready and willing-Suit-Filing-Delay-Waiver-Acquiescence-Delay in filing the suit for specific performance would operate either as acquiescence, waiver, abandonment or atleast make it inequitable to grant the relief of specific performance to the plaintiff.
        Delay in filing the suit, it would operate either as acquiescence or as waiver or as abandonment or atleast make it inequitable, to grant the relief of specific performance to the appellant-plaintiff. Para 33

Judgment :-

The above Second Appeal arises against the judgment and decree in A.S.No.298 of 2000 on the file of II Additional Judge, City Civil Court, Chennai confirming the Judgment and Decree in O.S.No.3820 of 1996 on the file of VIII Assistant Judge, City Civil Court, Chennai.

2. The plaintiff in the suit is the appellant in the above second appeal and the respondents 1 to 7 are the defendants in the suit. The respondents 8 and 9 are the purchasers of the suit property from the respondents 1 to 7, who were impleaded in the above second appeal.

3. The plaintiff filed the suit in O.S.No.3820 of 1996 on the file of VIII Assistant Judge, City Civil Court, Chennai for the following reliefs:

(i) Directing the defendants to specifically perform the agreement of sale dated 16. 1983 filed as Plaint Document No.1 and to execute the same in his favour of the plaint schedule mentioned property.

ii) Directing the defendants to deliver to the plaintiff vacant possession of the plaint schedule mentioned property.

iii) In the event this court comes to the conclusion that specific performance cannot be ordered, then direct the defendants to refund to the plaintiff the advance of Rs.35,000/-paid by him with interest at 24% as claimed in the plaint and to charge a for the said sum with costs on the plaint schedule mentioned property.

iv) Directing the defendants to pay to the plaintiff Rs.20,000/-as compensation for breach committed by defendants with interest thereon at 24% p.a. from the date of plaint till date of payment.

v) Directing the defendants to pay to the plaintiff the cost of the suit.

4. The brief case of the plaintiff in the suit is as follows:-

.(i) According to the plaintiff, defendants 1 to 3 are the sons of late V.Sundararaja Mudaliar. Defendants 5 to 7 are the daughters and the fourth defendant is the wife of the said late Sundararaja Mudaliar. On 16. 1983, the said V.Sundararaja Mudaliar and defendants 1 to 3 entered into an agreement of sale with the plaintiff at Chennai. By the said agreement, they agreed to sell the suit property to the plaintiff for a sum of Rs.1,15,000/-. A sum of Rs.25,000/-was paid by the plaintiff to V.Sundararaja Mudaliar on 111. 1982 and the said sum of Rs.25,000/-was treated as part of the advance and the plaintiff paid them a further sum of Rs. 10,000/-on 16. 1983. Thus, the plaintiff had paid a total sum of Rs.35,000/- as advance.

.(ii) According to the plaintiff, the defendants 1 to 3 and Sundararaja Mudaliar agreed to deliver vacant possession of the suit property to him or his nominee at the time of registration of the sale deed and that the sale deed shall be executed within 15 days from the date on which the defendants 1 to 3 and their father Sundararaja Mudaliar inform the plaintiff that the premises is vacant and ready for delivery. The plaintiff came to know in or about second week of May 1986 that the tenant in occupation of the suit property had vacated it. Sundararaja Mudaliar had died on 211. 1984. On coming to know that the tenant has vacated the premises, the plaintiff approached the defendants 1 to 4 and requested them to implement the suit agreement. Since the defendants were evading to comply with his request, the plaintiff issued a lawyers notice dated 6. 1986 to the defendants 1 to 4 informing that he was ready and willing to pay the balance sale consideration and to perform all the essential terms of the agreement of sale to be performed by him and calling upon them to produce Income tax clearance certificate and to inform him about the date of registration of the sale deed within 10 days from the date of receipt of the notice.

(iii) According to the plaintiff, the defendants 1 to 4 sent a reply dated 16. 1986 wherein, they admitted the execution of the sale agreement but denied the existence of the validity for enforcement of the same taking a false plea that they had informed the plaintiff on 7. 1985 that they had kept the premises vacant and asked him to pay the bal

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2010 Supreme(Mad) 1659

High Court of Judicature at Madras THE HONOURABLE MR. JUSTICE M. DURAISWAMY Jugraj Versus P. Sankaran & Others Second Appeal No.699 of 2003 & C.M.P.No.6660 of 2003 Decided On : 09-04-2010

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
Jugraj
Versus
P. Sankaran & Others
Second Appeal No.699 of 2003 & C.M.P.No.6660 of 2003
Decided On : 09-04-2010